The following describes the affiliate relationship you may enter with Lean Sensory Systems, Inc. through its affiliate partner program (the "Affiliate Partner Program"). The Affiliate Partner Program terms and conditions are set forth below and on a separate signature page (the "Signature Page", together with the following terms and conditions, the "Affiliate Partner Terms"). These Affiliate Partner Terms cover your responsibilities as an affiliate and our responsibilities to you. You should read the entire Affiliate Partner Terms carefully as each of the terms and conditions are important to our working relationship. "We", "Our", and "Us" refers to Lean Sensory Systems, Inc., a New York corporation doing business as DraughtLab. "You", "Your", and "Yours" refers to the legal person or entity entering into this Agreement with Us in their capacity as a participant (an "Affiliate Partner") in Our Affiliate Partner Program.
Once You and Lean Sensory Systems, Inc. both Sign the Signature Page, You will Enter into a Binding Agreement Governed by the Affiliate Partner Terms
If Your application for entrance into the Affiliate Partner Program is accepted, We will ask that You sign and return a Signature Page to us. We will then sign and return a copy of the fully executed Signature Page to you. Once signed by both parties, the Affiliate Partner Terms will become the terms and conditions of a binding agreement (the "Agreement") between You and Us. In the event of a conflict between the terms and conditions set forth below and those set forth on the Signature Page, the terms and conditions on the Signature Page govern.
How to Become a Affiliate Partner
To become an Affiliate Partner, We must invite You to apply to the Affiliate Partner Program. Our invitation will include an application that You will be asked to complete and submit (the "Affiliate Application"). Submitting an Affiliate Application does not guarantee inclusion in the Affiliate Partner Program. We evaluate every application, and We are the sole and exclusive decision-maker regarding Your acceptance into the Affiliate Partner Program. We will notify You within a reasonable time, via email, whether You have been accepted or rejected. We are not obligated to provide You with any explanation for Our rejection and We may reject the Affiliate Application for any reason or in any manner.
What is the Affiliate Partner Program
As an Affiliate Partner, you may earn a cash reward when one of your members (each a "Member") purchases one of the products covered under Our Affiliate Partner Program (each a "Product"). The cash reward (the "Affiliate Fee") shall equal a percentage of the amount paid by a Member ("Member Revenue") for one or more of the products set forth on the Signature Page purchased during each calendar quarter. The percentage of Member Revenue upon which Your Affiliate Fee is based is the percentage set forth on the Signature Page. The Affiliate Fee will only be earned when We receive payment for a Product from a Member. We reserve the unilateral right to adjust, without notice, the price we charge for Our Products. Every Product will be offered to Members at a discount to the price at which we offer the Product to the public.
When an Affiliate Partner generates eleven (11) or more Product sales through the Affiliate Partner Program in any calendar quarter, We will increase the percentage of the Affiliate Fee earned, as more particularly set forth on the Signature Page, with respect to each such Product sale over ten (10) in the calendar quarter.
Conditions to Being an Affiliate Partner
To be an Affiliate Partner, You must be an association or other legal entity with members.
We welcome Your participation in the sales process if it meets Our Acceptable Use Policies set forth below. Final sales, scoping, and delivery of Products to Members are Our sole responsibility.
Rules for Earning an Affiliate Fee
To qualify for an Affiliate Fee on Member Revenue (a "Qualified Sale"), the Member Revenue must:
We will provide You with a unique link or code that You may provide to Your Members so they may use the link or code to obtain the discount on the purchase of Products. You may not provide Your unique link or code to anyone who is not one or Your Members. Your Members may not provide the link or code to anyone. Accordingly, You must provide Us, from time to time upon request and in a timely manner, with a list of Your Members or arrange for some other manner of verifying with Us the Members to whom You have provided Your unique link or code.
We have sole discretion and We will use Our reasonable judgment in determining if and when an Affiliate Fee is earned.
How the Referral Fee is Credited and/or Paid
We will initiate payment of Your Affiliate Fee, through a method to which we both agree in writing, every quarter according to the following schedule:
We are not responsible for any delays caused by third-parties responsible for the delivery or transmission of an Affiliate Fee payment, e.g., a bank, the United States Postal Service, FedEx, UPS, a money transmitter, etc. We shall provide You with a quarterly report summarizing Your Members’ activity and the Affiliate Fees paid for Qualified Sales.
No Affiliate Fee will be paid until the Affiliate Partner agrees in writing to a payment method. No Affiliate Fee will be paid until We receive a completed IRS W-9 or W-8 BEN form from the Referral Partner.
Treat Potential Customers as We Would
You agree not to use the Affiliate Partner Program for any unlawful purpose, or any purpose prohibited under this Agreement. You agree not to use the Affiliate Partner Program in any way that might damage Our websites, products, services, reputation, goodwill, or general business. You agree to inform the Members of Your right to receive an Affiliate Fee, based upon their purchase of Our Products, as part of the process You use to provide Your unique link or code to Your Members.
You agree not to use the Affiliate Partner Program:
As an Affiliate Partner, You are representing the DraughtLab brand and values. We treat all people equally and with kindness and expect Our partners to do the same.
No Unauthorized Representations
You shall refrain from making any representations, warranties, or guarantees to Members, prospective Members or trade industry participants with respect to the specifications, features or capabilities of Our products that are deceptive, misleading, or otherwise inconsistent with the literature distributed by Us. You are not an agent of Ours and You have no authority to execute contracts or otherwise act on Our behalf.
This Agreement does not create an exclusive relationship between You and Us. You are free to work with other affiliate partner program providers in any industry. This agreement imposes no restrictions on Us to work with any individual or company We may choose.
We hereby grant You a non-exclusive, non-transferable, revocable license to use Our name, trademarks, service marks and brand solely and exclusively in conjunction with identifying Our company and brand for the purpose of generating Member Revenue in conjunction with Our Affiliate Partner Program.
You hereby provide Us a non-exclusive, non-transferable, revocable license to use Your name, trademarks, service marks and brands, as applicable, to market Our Affiliate Partner Program.
Agreement Term
The term of this Agreement begins on the date the Signature Page is fully signed. It may be terminated by either party at any time with or without cause.
This Agreement shall terminate if one-year passes without Our receipt of any Member Revenue.
Termination for Cause
We may terminate this Agreement for cause if the Affiliate Partner materially breaches this Agreement. If this Agreement is terminated for cause, previously earned and unpaid Affiliate Fees are forfeit.
Effect of Termination
If this Agreement is terminated without cause, by either party, You will earn and be paid Affiliate Fees from Qualified Sales during the calendar quarter in which the termination occurs.
Our Indemnification of the Affiliate Partner
We will defend the Affiliate Partner from and against any and all third-party claims, actions, suits, proceedings, and demands alleging the that the use of the Affiliate Partner Program as permitted under this Agreement infringes upon or misappropriates a third-party's intellectual property rights (a "Claim Against the Affiliate Partner"), and We will indemnify the Affiliate Partner for all reasonable attorney's fees incurred and damages and other costs finally awarded against the Affiliate Partner in connection with or as a result of a final non-appealable judgment from a court of competent jurisdiction, or settlement We approve of, in connection with a Claim Against the Affiliate Partner; provided, however, that We will have no liability if a Claim Against the Affiliate Partner arises from Affiliate Partner’s original content. The Affiliate Partner must provide Us with prompt written notice of any Claim Against the Affiliate Partner and allow Us the right to assume the exclusive defense and control. Furthermore, the Affiliate Partner must cooperate with any reasonable requests to assist Our defense and, when applicable, settling such matters. This section states Our sole liability with respect to, and the Affiliate Partner’s exclusive remedy against Us for, any Claim Against the Affiliate Partner.
Your Indemnification of Us
The Affiliate Partner will defend Us from and against any and all third-party claims, actions, suits, proceedings, and demands and will indemnify Us for all reasonable attorney's fees incurred and damages and other costs finally awarded against Us in connection with or as a result of a final judgment from a court of competent jurisdiction or settlement the Affiliate Partner approves of, arising from or related to the Affiliate Partner’s conduct while participating in the Affiliate Partner Program (a "Claim Against Us"). We must provide the Affiliate Partner with prompt written notice of any Claim Against Us and allow the Affiliate Partner the right to assume the exclusive defense and control. Furthermore, We must cooperate with any reasonable requests to assist the Affiliate Partner’s defense and, when applicable, settling such matters. This section states the Affiliate Partner’s sole liability to Us with respect to any Claim Against Us.
Limitation of Indemnifications
Notwithstanding anything contained in the preceding two paragraphs, (a) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel and (b) no settlement may be entered into by an indemnifying party without the express written consent of the indemnified party (such consent not to be unreasonably withheld) if (i) the third-party asserting the claim is a government agency, (ii) the settlement arguably involves the making of admissions by the indemnified party, (iii) the settlement does not include a full release of liability for the indemnified party, and/or (iv) the settlement includes terms other than a full release of liability for the indemnified party and the payment of money.
OTHER THAN IN CONNECTION WITH OUR INDEMNIFICATION OBLIGATIONS SET FORTH ABOVE, WE WILL NOT BE LIABLE FOR ANY DAMAGES THAT MAY OCCUR TO YOU AS A RESULT OF YOUR PARTICIPATION IN THE AFFILIATE PARTNER PROGRAM. THE MAXIMUM LIABILITY OF LEAN SENSORY SYSTEMS, INC. ARISING FROM OR RELATING TO THIS AGREEMENT IS LIMITED TO THE AMOUNT OF AFFILIATE FEES EARNED BY YOU. THIS SECTION APPLIES TO ANY AND ALL CLAIMS BY YOU, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR REVENUES, CONSEQUENTIAL OR PUNITIVE DAMAGES, NEGLIGENCE, STRICT LIABILITY, FRAUD, OR TORTS OF ANY KIND. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
The sections titled "Effect of Termination", "Our Indemnification of the Affiliate Partner", "Your Indemnification of Us", "Limitation of Indemnifications", "Limitation of Liability", and "Survival" will survive any termination or expiration of this Agreement.
Force Majeure
Neither party will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond its reasonable control, which may include denial-of-service attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and/or governmental action.
Relationship of the Parties
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to this Agreement.
Electronic Communications Permitted
Electronic communications are permitted by both parties under this Agreement, including email. For any questions or concerns, please email us at the following address: legal@leansensory.com. We will email you at the email address provided by you on the Signature Page, which address may be changed by you from time to time by providing us with written notice of such change.
Modifications
As Our business evolves, We may change the Affiliate Partner Terms. If We make a material change, We will provide You with reasonable notice prior to the change taking effect by emailing such notice to Your email address. You may review the most current version of the Affiliate Partner Terms at any time by visiting this webpage and reviewing your Signature Page. The materially revised agreement will become effective on the date set forth in Our notice. If You do not agree to the modifications, You may choose to terminate this Agreement.
Waiver
No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
Severability
This Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the parties' objectives set forth in the original provision to the fullest extent permitted by law and the remaining provisions of this Agreement will remain in effect.
Assignment
Neither party may assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. The Affiliate Partner will always keep its contact information current by notifying Us of any changes. Any purported assignment in violation of this section is void ab initio. A party's sole remedy for any purported assignment by the other party in breach of this section will be, at the non-assigning party's election, termination of this Agreement for cause upon written notice to the putative assigning party. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Dispute Resolution
The parties will mutually attempt to settle any disagreements through amiable negotiations. If the disagreement cannot be settled through negotiations, then the resolution of any disputes arising out of this Agreement or related thereto, will be governed exclusively by the applicable laws of the State of New York, without regard to conflicts of laws rules. Each party hereby agrees to submit to the exclusive jurisdiction of the Supreme Court of the State of New York, with venue in Monroe County, New York, or of the United States District Court for the Western District of New York with venue in Monroe County, New York. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney's fees.
Entire Agreement
This Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.